Exhibit 10.52
CONFIDENTIAL SETTLEMENT AGREEMENT AND RELEASE
This Confidential Settlement Agreement and Release ("Settlement
Agreement") is between you, Xxxx Xxxxxxx ("you" or "your"), and The Great
Atlantic & Pacific Tea Company, Inc. ("A&P"), and any of its present or former
parents, subsidiaries, affiliates or divisions, and any of its or their
predecessors, successors, assigns, agents, employees, officers and/or directors
(collectively, the "Company").
WHEREAS, A&P gave you notice, pursuant to paragraph 1(c) of the
Employment Agreement entered into between you and A&P on September 15, 2005, as
amended on December 16, 2008 and June 16, 2009 (the "Employment Agreement"),
that the Terminal Date would not be extended; and
WHEREAS, a dispute then developed as to each party's obligations under
the Employment Agreement;
and WHEREAS, the parties have agreed that it is in their mutual
interest to resolve the dispute upon the terms and conditions more fully set
forth hereinafter;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth herein, the parties, intending to be legally bound, agree as follows:
1. Separation Date; Severance Payments and Benefits
a. Your separation from employment will be effective May 31, 2010 (your
"Separation Date"); provided, however, that you will not be reporting
to work after April 15, 2010 and A&P will forego the services normally
performed by you from April 15, 2010 through your Separation Date. As
of your Separation Date, all rights, privileges and entitlements as an
active employee will cease.
b. As a result of your Separation Date, the 24,706 non-qualified stock
options that are scheduled to vest on May 26, 2010 at an exercise price
of $4.01, and the 12,338 Restricted Share Units that are also scheduled
to vest on May 26, 2010, will vest.
c. A&P agrees to pay you severance pay in the gross total sum of Seven
Hundred and Eighty Three Thousand and Seven Hundred and Fifty Dollars
($783,750.00) (the "Settlement Amount"). The Settlement Amount shall be
paid in 26 equal installments (of $30,144.23 each) on A&P's regular
bi-weekly pay dates. The payments will commence on June 17, 2010,
provided that this Settlement Agreement has been executed by you and
has not been revoked. Applicable tax withholdings shall be made and A&P
shall issue you an IRS Form W-2. During the period that you are
receiving installment payments of the Settlement Amount, you agree that
you will cooperate reasonably with A&P and its authorized employees at
mutually agreeable dates and times in relation to matters in which you
were involved while employed or as to which you have insight or
knowledge related to or arising from your employment.
d. During the period of June 1, 2010 through May 31, 2011, you shall
remain covered by the medical, dental, vision, life insurance, and, if
reasonably commercially available through nationally reputable
insurance carriers, long-term disability plans that covered you
immediately prior to your Separation Date. In the event your
participation in any such plan is barred, A&P shall arrange to provide
you with substantially similar benefits (but, in the case of long-term
disability benefits, only if reasonably commercially available). The
medical insurance coverage pursuant to this paragraph shall count
towards your total entitlement to continued coverage under COBRA and
shall become secondary upon the earlier of (i) the date on which you
begin to be covered by comparable medical coverage provided by a new
employer, or (ii) the date on which you become eligible for Medicare or
a comparable Government insurance program.
e. A&P will provide you with an executive level outplacement assistance
program.
f. For purposes of the Supplemental Executive Retirement
Program (SERP), your separation from employment will be considered
an involuntary termination.
g. A&P and the Company shall have no obligation to indemnify or
otherwise protect you from the obligation to pay any taxes, interest or
penalties pursuant to Internal Revenue Code Section 409A, if any, that
result from this Settlement Agreement.
2. Release
In exchange for the consideration set forth in paragraph 1 above, which
you acknowledge exceeds anything to which you are otherwise entitled without
signing this Settlement Agreement, you, for yourself, your family, heirs,
executors and administrators, agree to discharge and release all claims,
obligations and demands which you have, ever had, or in the future may have
against A&P and the Company arising out of or related to your employment and/or
your separation from employment, including, but not limited to, any and all
claims for breach of contract or implied contract or any covenants of good faith
and fair dealing, for constructive or wrongful discharge, or for negligence,
retaliation and any and all torts; any and all claims for attorney fees; and any
and all claims of discrimination or wrongdoing under Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act ("ADEA"), the Older Workers Benefit Protection Act ("OWBPA"), the
Americans with Disabilities Act, the Employment Retirement Income Security Act
of 1974, the Family and Medical Leave Act, the Equal Pay Act, the Worker
Adjustment and Retraining Notification Act, the National Labor Relations Act,
the Fair Labor Standards Act, the Xxxxxxxx-Xxxxx Act of 2002, each and every
state or local variation of these federal laws including without limitation the
Maryland Economic Stabilization Act (plant closing law), the Maryland Fair
Employment Practices Act, the New Jersey Law Against Discrimination, the New
Jersey Family Leave Act, the New Jersey Conscientious Employee Protection Act,
the Millville Dallas Airmotive Plant Job Loss Notification Act, and the New
Jersey Civil Rights Act, and any and all other applicable federal, state, and
local fair employment practices laws, individual or constitutional rights, and
wage or discrimination laws.
Excluded from the foregoing release are any claims which by law cannot
be waived; provided, however, while you cannot waive your right to file a charge
with or participate in an investigation conducted by certain government
agencies, you are waiving and releasing your claim or right to any monetary
recovery should any agency (such as the Equal Employment Opportunity Commission)
pursue any claims on your behalf. The foregoing release shall not affect any
acts giving rise to claims subsequent to your execution of this Settlement
Agreement.
3. Disclaimer Of Liability
By entering into this Settlement Agreement, A&P and the Company do not
admit any liability or wrongdoing whatsoever, and expressly deny the same. It is
expressly understood and agreed that this Settlement Agreement is being entered
into by the parties solely for the purpose of avoiding the costs and disruption
of any further dispute.
4. Confidentiality and Non-Disclosure of this Settlement
Agreement
You agree that you will not disclose the terms of this Settlement
Agreement to any person, except that you may state without further comment that
the matter has been resolved. This agreement as to confidentiality shall be
enforceable in any court of competent jurisdiction, and the parties agree that
said court may award such relief as may be appropriate, including injunctive
relief, and liquidated damages, which the parties agree shall be set at
$250,000.00. This provision shall not apply to any disclosure made by you to
members of your immediate family, your attorney or tax advisor, under compulsion
of legal process, or as otherwise required by law. You agree to instruct any
person or entity listed in the previous sentence to whom any disclosure is made
under this paragraph to maintain the strict confidentiality thereof. You agree
that if you will be disclosing the terms of this Settlement Agreement under
compulsion of legal process or as otherwise required by law, you will
immediately notify A&P.
5. Publicity and Non-Disparagement
You agree that you will not make statements for public dissemination
accusing A&P or the Company of any wrongful, improper, discriminatory, unlawful,
or unfair conduct. This provision shall not apply to any disclosure made by you
to members of your immediate family, your attorney or tax advisor, under
compulsion of legal process, or as otherwise required by law. You further agree
that you will not make disparaging remarks about the Company in a manner that
will cause damage or loss to the Company's business.
6. Non-Competition and Non-Solicitation
You agree that for a period of twelve months following your Separation
Date, you will not, within any of the geographical areas of the United States in
which the Company is conducting business (either directly or through
franchisees), directly or indirectly, own, manage, operate, control, be employed
by, participate in, provide consulting services to, or be connected in any
manner with the ownership, management, operation or control of any business
similar to any of the types of businesses conducted by the Company to any
significant extent during your employment or on your Separation Date, except
that you may own for investment purposes up to 1% of the capital stock of any
company whose stock is publicly traded; provided, however, that should future
employment opportunities present themselves, you and the Company will utilize
best efforts to reach accord. Furthermore, during such twelve-month period
following your Separation Date you agree that you will not contact or solicit
employees of the Company for the purpose of inducing such employees to leave the
employ of the Company. Notwithstanding any other provision of this Settlement
Agreement, if you breach this paragraph 6, then the Company may, in addition to
any other rights and remedies available to it at law or under this Settlement
Agreement, discontinue paying to you any of the severance benefits set forth in
paragraph 1.
7. Confidential Information and Trade Secrets
You hereby acknowledge that during your employment you had access to
and became acquainted with various trade secrets and proprietary information of
the Company and other confidential information relating to the Company. You
agree that you will not, directly or indirectly, disclose or use such
information. You also agree that you will not disclose privileged and/or
proprietary communications, information or documents that you have learned of or
received during the course of your employment related in any way to any pending
or anticipated legal proceeding to anyone other than authorized employees of the
Company or its attorneys, except pursuant to a valid court order, subpoena or
other governmental or judicial direction. You agree that if you receive such a
court order, subpoena or other governmental or judicial direction, you will
immediately notify A&P.
8. Arbitration; Injunctive Relief
Any controversy or claim arising out of or relating to this Settlement
Agreement, directly or indirectly, or the performance or breach thereof, will be
settled by arbitration in accordance with the rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. The arbitration will be held
in New York, New York, or such other place as may be agreed upon at the time by
the parties to the arbitration. The parties shall bear their own expenses in
connection with any arbitration or proceeding arising out of or relating to this
Settlement Agreement, directly or indirectly, or the performance or breach
thereof; provided, however, that in the event that you substantially prevail,
the Company agrees promptly to reimburse you for all expenses (including costs
and fees of witnesses, evidence and attorneys fees and expenses) reasonably
incurred by you in investigating, prosecuting, defending, or preparing to
prosecute or defend any action, proceeding or claim arising out of or relating
to this Settlement Agreement, directly or indirectly, or the performance or
breach thereof. You acknowledge and agree that a breach of your obligations
under paragraphs 4, 5, 6 or 7 will cause irreparable harm to the Company for
which the Company would have no adequate remedy at law, and further agree that,
notwithstanding the agreement of the parties to arbitrate controversies or
claims as set forth above, the Company may apply to a court of competent
jurisdiction to seek to enjoin preliminarily or permanently any breach or
threatened breach of your obligations under paragraphs 4, 5, 6 or 7, in addition
to any other remedies.
9. General Provisions
a. This is the parties' entire agreement as to the subject matter
hereof and it may not be modified except by a mutually signed written agreement.
This Settlement Agreement shall be construed and enforced in accordance with the
laws of the State of New Jersey, and federal law where applicable.
b. You acknowledge the following: (i) you have read and fully
understand the terms of this Settlement Agreement; (ii) you have agreed to this
Settlement Agreement knowingly and voluntarily and were not subjected to any
undue influence in agreeing to its terms; (iii) you were advised by the Company
in writing to discuss this Settlement Agreement with an attorney; (iv) in the
absence of entering into this Settlement Agreement, you would not be entitled to
the Settlement Amount; (v) you were given at least twenty one (21) days during
which to consider this Settlement Agreement; (vi) this Settlement Agreement
shall not become effective until the eighth day after its execution; and (vii)
you may revoke this Settlement Agreement within the seven-day period following
its execution by delivering written notice of revocation to Xxxxxx Xxxxxx, Esq.,
A&P, 0 Xxxxxxx Xxxxx, Xxxxxxxx, XX 00000.
c. The terms and provisions of this Settlement Agreement are
acknowledged by the parties to be required for the reasonable protection of the
others. If any of the provisions, terms, clauses, or waivers or releases of
claims or rights contained in this Settlement Agreement are declared unlawful,
unenforceable, or ineffective in a legal forum of competent jurisdiction, then
such provisions, terms, clauses, or waivers or releases of claims or rights
shall be deemed severable, such that all other provisions, terms, clauses, and
waivers and releases of claims or rights contained in this Settlement Agreement
shall remain valid and binding upon the parties; provided, however, that if the
result of such declaration is that you are deemed entitled to litigate any
claims settled by the terms of this Settlement Agreement, then you shall remit
to A&P the Settlement Amount paid to you pursuant to paragraph 1 above, prior to
and as a condition of initiating any proceedings related to such claims.
d. This Settlement Agreement may be signed in counterparts, which
together shall constitute one document.
XXXX XXXXXXX THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC.
_______________________________ By:_________________________
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